CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 décembre 2008

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margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2C93D81E { margin-top:12pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }       FIRST SECTION           CASE OF MIRILASHVILI v. RUSSIA   (Application no. 6293/04)               JUDGMENT       STRASBOURG   11 December 2008   FINAL   05/06/2009     This judgment may be subject to editorial revision In the case of Mirilashvili v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 20 November 2008, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 6293/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian and Israeli national, Mikhail Mirilashvili (“the applicant”), on 6 February 2004. 2.     The applicant was represented by Ms Gascon-Retoré, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V.   Milinchuk the former Representatives of the Russian Federation at the European Court of Human Rights. 3.     The applicant complained, that he did not have a fair trial and, in particular, about the allegedly unfair taking and examination of evidence by the domestic courts. 4.     By a decision of 10 July 2007 the Court declared the application partly admissible. 5.     The applicant and the Government each filed further written observations (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1960 and is currently serving a prison sentence in correctional colony YuK-25/8, Orenburg Region. A.     The events of 7 and 8 August 2000 7.     On the morning of 7 August 2000 the applicant’s father, an important businessman, was kidnapped from his car in St   Petersburg. The abduction was organised by Mr   Kervalishvili and Mr   Berkadze, known within the Georgian criminal milieu, with a view to receiving a ransom for his life. 8.     Mr   Kogan, the personal driver of the applicant’s father, managed to escape from the kidnappers. He contacted the police and the applicant’s relatives and told them what had happened. The police immediately started an investigation. 9.     On the afternoon of 7 August 2000, having received the information about his father’s abduction, the applicant flew from Israel to Russia. As regards the following events, the parties’ accounts differ. 1.     The applicant’s account 10.     According to the applicant, once he arrived in St   Petersburg he went to his office, where he met his brother and a group of his employees. In the presence of an unidentified police officer, the applicant’s brother assured the applicant that the best policemen had been deployed to find and release his father. 11.     On the same evening the applicant was contacted by Mr Berkadze (an accomplice to the kidnappers), who offered his services to locate the applicant’s father. On the following morning Mr Berkadze called Ms   Margvelashvili from the applicant’s office and asked her to assist in finding the applicant’s father. In exchange, Mr Berkadze offered to facilitate the release of her friends, Mr   Dvali, Mr   Kakushadze and Mr Grigolashvili, who had been arrested by the police earlier that evening. The applicant spoke to Ms Margvelashvili by telephone as well. He asked for help in finding his father. 12.     On the evening of 8 August the applicant’s father was released by his abductors. 2.     The prosecution authorities’ version of the events 13.     According to the prosecution authorities’ account, on arrival in St   Petersburg the applicant, acting through his bodyguards (namely Mr   Kazimirchuk and several others), ordered several unidentified individuals to go to Ms   Margvelashvili’s flat on the basis that she had allegedly been involved in the abduction of the applicant’s father, and to kidnap members of her family, in order to exchange them for his father. The information that Ms   Margvelashvili might have been implicated in the abduction of the applicant’s father had been received earlier that day from the police officers in charge of the official investigation into the event. 14.     Early in the morning of 8 August 2000 the applicant’s men, posing as uniformed police officers, broke into Ms Margvelashvili’s flat, kidnapped Mr Dvali and Mr Kakushadze and took them to the applicant’s office. Ms   Margvelashvili and her minor son remained in the flat under the surveillance of two “policemen”. Since Mr Dvali and Mr Kakushadze were unable to indicate the whereabouts of the applicant’s father, the applicant ordered the kidnapping of another person, Mr Grigolashvili, who allegedly knew where the applicant’s father was detained. 15.     In the applicant’s office, Mr Dvali, Mr Kakushadze and Mr   Grigolashvili were questioned and beaten by six of the applicant’s employees, including Mr   Kazimirchuk, the applicant’s chief bodyguard. It appears that the applicant and his brother took part in their questioning and that the applicant hit Mr Grigolashvili in the face at least once. The applicant invited his father’s driver, Mr Kogan, to his office and showed him Mr Dvali, Mr   Kakushadze, and Mr Grigolashvili. However, the driver stated that none of those people had taken part in the abduction of the applicant’s father. 16.     In the afternoon of 8 August 2000 the applicant called Ms   Margvelashvili and threatened her and her son with death if she did not tell him who had been behind the abduction of his father. Fearing for her life and the lives of those detained by the applicant, Ms Margvelashvili, via her friend Ms   Avaliani, contacted Mr Kervalishvili, the abductor of the applicant’s father, and informed him of the developments. The latter called the applicant and they agreed to “exchange hostages”. 17.     In the evening of 8 August 2000 Mr Kervalishvili released the applicant’s father, and the applicant ordered the release of Mr Grigolashvili, Ms Margvelashvili and her son. 18.     As to Mr Dvali and Mr Kakushadze, they had been so badly beaten by the applicant’s men that he ordered that they be killed. Mr Dvali and Mr   Kakushadze were suffocated and their bodies were dismembered and buried in an empty water cistern situated on the premises of a service station (garage) belonging to a certain Mr Sidler. B.     Criminal proceedings against Mr Kervalishvili 19.     In September 2000 Mr Kervalishvili, the leader of the criminal group which had abducted the applicant’s father, left Russia. He moved to Georgia, where he was arrested on suspicion of having killed a policeman and was later charged with other crimes, not related to the events of 7 and 8   August 2000. 20.     On an unspecified date in 2000 the Russian police opened a criminal investigation into the abduction of the applicant’s father. However, the investigation was later closed on the ground that Mr Kervalishvili and his group had voluntarily released the applicant’s father. In September 2001 that decision was quashed by the Vyborgskiy District Court of St Petersburg and the proceedings against Mr Kervalishvili were reopened. There is no information available about the results of that investigation. C. Criminal proceedings against the applicant 1. Commencement of the proceedings 21.     On 11 July 2000 (before the events described above), in connection with an unrelated inquiry carried out by the St   Petersburg police, the President of the St   Petersburg City Court ordered that the telephone lines at the flats of Mr Grigolashvili and Ms   Margvelashvili be tapped. As a result, the police recorded all telephone calls to and from these flats. One of the voices recorded by the police belonged to an unknown man, calling on 8   August 2000 from the applicant’s office, who threatened Ms   Margvelashvili with death in connection with the disappearance of the applicant’s father. 22.     On 21 September 2000 Mr   Tsartsidze, a cousin of the deceased Mr   Kakushadze, informed the police of the latter’s disappearance. The prosecutor’s office opened an official investigation into the disappearance of Mr Kakushadze. 23.     On 22 September 2000 Mr Grigolashvili was questioned by the investigator. During the questioning he showed the police the place where he had been taken in the morning of 8   August 2000. It happened to be one of the office buildings belonging to the firms owned by the applicant. Mr   Grigolashvili told the police that in that building he had been questioned by several persons in connection with the disappearance of the applicant’s father. Mr Grigolashvili had described one of those persons as a Georgian of 30 – 32 years of age who was “a son of Mr Mirilashvili-senior” (for more details see the summary of Mr   Grigolashvili’s deposition in paragraph 49 below). 24.     On 29 November 2000 the prosecutor’s office received thirteen audiotapes from the police containing recordings of telephone conversations made as part of a surveillance operation at the flats of Ms Margvelashvili and Mr Grigolashvili. These audiotapes contained no recording of the period between 5 p.m. on 7   August and 1.40 p.m. on 8 August 2000. In March 2001 the investigator in charge of the case requested that the police produce the missing recordings, but the police informed him that this part of the recording “had been lost for technical reasons”. 25.     Over the following months the investigator questioned a number of other persons, including Ms Margvelashvili and Ms Avaliani. Their written testimonies were added to the case file relating to the disappearance of Mr   Kakushadze. 26.     On an unspecified date Mr Grigolashvili left Russia and settled in Kutaisi, Georgia. Ms Margvelashvili also moved to Georgia. In November   2000 Mr Grigolashvili was questioned by the Georgian prosecution authorities in connection with the investigation into the disappearance of Mr Kakushadze, at the request of the Russian prosecution authorities. On 5   April 2001 the Georgian prosecution authorities also questioned Ms   Margvelashvili within the same criminal proceedings. Both witnesses confirmed the depositions they had made earlier in Russia. 27.     In December 2000 Mr   Tsartsidze transmitted to the investigative authorities two audiotapes, alleging that they contained a recording of a conversation between him and Mr Grigolashvili, made without the latter’s knowledge, on 19   September 2000. The conversation concerned the events of 7   and 8   August 2000. During the conversation Mr Grigolashvili confirmed, at least in substance, that those who had abducted Mr Dvali, Mr   Kakushadze and himself had been acting on the applicant’s orders. 2. The applicant’s arrest and further investigative measures 28.     On 23 January 2001 the applicant was arrested and placed in custody. He denied his involvement in the abduction and murder of the persons concerned. The applicant requested a confrontation with the witnesses against him, in particular Ms Margvelashvili, Mr Kervalishvili and Mr   Grigolashvili, but the investigative authorities rejected that request. 29.     On   31   January 2001 the applicant was formally charged with ordering the abduction of Mr Dvali and Mr Kakushadze. 30.     On 14 July 2001 the bodies of Mr Dvali and Mr   Kakushadze were discovered on the premises of the service station. On 16 July 2001 the investigation ordered the forensic examination of their bodies. 31.     On 21 July 2001 [1] , in order to identify the voice of a man who had telephoned Ms Margvelashvili’s flat on 8 August 2000, the investigator commissioned a phonological analysis of the audiotapes made by the police as part of the surveillance operation. A team of three experts was employed for this purpose. The experts were provided with test audiotapes containing samples of the applicant’s voice. 32 .     On 9 August 2001 Mr Kervalishvili was questioned by the Georgian prosecution authorities. On 24 January 2002 he was questioned again. He testified that the applicant was behind the abduction of Mr Dvali, Mr   Kakushadze and Mr Grigolashvili. 33.     On 20 September 2001 the expert team submitted a report on the audio recordings. Two Russian-speaking experts, Mr   Koval and Mr   Zubov, confirmed that the voice on the audiotapes belonged to the applicant. Ms   Kikalishvili, a Georgian-speaking expert, came to the opposite conclusion (the conversation between the man and Ms   Margvelashvili was conducted in Georgian, whereas on the “sample” audiotapes the applicant was speaking in Russian). 34.     On 5 and 8   October 2001 the applicant was charged with ordering the murder of Mr Dvali and Mr Kakushadze, abducting a third person, Mr   Grigolashvili, and threatening Ms   Margvelashvili and her child with death. Several other persons were also charged as part of the same criminal investigation, including Mr   Kazimirchuk,   the applicant’s bodyguard, and Mr   Sidler, who, according to the prosecution authorities, had helped to hide the bodies of Mr Dvali and Mr Kakushadze. 35.   On 26 February 2002 the applicant, referring to Article 6 § 3 (d) of the Convention, requested a face-to-face confrontation with the witnesses for the prosecution. In a letter of 15 March 2002 the investigator in charge of his case replied that the applicant would have an opportunity to confront witnesses during the trial. 36.     In April 2002 Mr Grigolashvili   wrote a letter to the prosecution authorities in Russia and Georgia. In this letter he withdrew his earlier statements concerning the applicant’s involvement in his abduction (see paragraphs 23 and 26 above). On an unspecified date a Deputy City Prosecutor of St   Petersburg requested that the Georgian authorities re-examine Mr   Grigolashvili, in order to elucidate discrepancies in his earlier testimony to the Russian and Georgian investigative authorities. 37.     On 2 April 2002 the prosecution reformulated the charges against the applicant and informed him about that decision. 38.     According to the Government, on 3 June 2002 the preliminary investigation was completed. On 5 June 2002 the applicant and his lawyers obtained access to the case file. 39.     On an unspecified date the applicant complained to the Oktyabrskiy District Court of Saint-Petersburg about the refusal of the investigative authorities to carry out face-to-face confrontation with Mr Grigolashvili and Mrs Margvelashvili. On 19 June 2002 the court dismissed that complaint. It held that under the Code of Criminal Procedure the investigator was free to decide whether a face-to-face confrontation of a witness with the accused was necessary. It also held that Mr Grigolashvili and Mrs Margvelashvili, as victims of the alleged crimes, were not bound to testify. According to the court, Ms Margvelashvili refused to participate in the face-to-face confrontation with the applicant, whereas Mr Grigolashvili had left Russia out of fear of reprisals from unidentified persons. In such circumstances the decision of the investigator not to hold face-to-face confrontations with the applicant was justified. The defence appealed against that decision. There is no information about the outcome of the appeal. 40.     On 25 June 2002 Mr Grigolashvili was questioned by the Georgian authorities (see paragraph 36 above). Mr Grigolashvili testified that he had falsely accused the applicant under threats from Mr Tsartsidze and a relative of the deceased Mr   Kakushadze. Mr Grigolashvili was shown a photo of the applicant; after having examined that photo he explained that it was not the men who had questioned and slapped him on the night of the events. His written submissions were transmitted by the Georgian authorities to the Russian prosecution authorities. According to the applicant, those documents were not added to the case file. 3.     Bill of indictment 41.     On 1 July 2002 the defence informed the prosecution that they had finished studying the material in the case file. On 19 July 2002 the City Prosecutor approved the bill of indictment; a copy of that bill was handed to the applicant. 42.     According to the indictment, the prosecution charged the applicant with having organised, through his bodyguards, the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, the illegal detention of Ms   Margvelashvili and her minor son, and the murder of Mr   Dvali and Mr   Kakushadze. 43.     Mr Kazimirchuk and several other people who had previously worked for the applicant were also brought to trial as his accomplices. According to the prosecution, on 7   August 2000 the applicant had ordered Mr   Kazimirchuk and five other co-accused (Mr   Polunin, Mr Demenko, Mr   Kuzmenko, Mr   Petrov and Mr   Mogutov) to find his father’s abductors and bring them to him. In turn, Mr   Kazimirchuk and his colleagues had delegated that task to a group of men who remained unidentified by the investigation. Those men, acting as police officers, had kidnapped Mr Dvali, Mr   Kakushadze and Mr   Grigolashvili and brought them to the applicant’s office. Acting on the applicant’s orders, those unidentified men had also murdered Mr Dvali and Mr Kakushadze. 44.     In addition to the charges relating directly to the events of 7 and 8   August 2000, a number of auxiliary charges were also brought by the prosecution against the applicant’s co-accused. Thus, Mr   Petrov, one of the applicant’s employees, was charged with illegal possession of ammunition for a firearm. Mr Sidler, who owned the service station where the bodies of Mr   Dvali and Mr   Kakushadze had been discovered, was charged with concealing a crime. 45.     In support of the charges against the applicant, the prosecution authorities referred to the written statements obtained from Ms   Margvelashvili, Mr   Grigolashvili, Mr Tsartsidze, Ms Avaliani and Mr   Kervalishvili in 2000 and 2001 during the official investigation. Their depositions are summarised below. (a)   Depositions by Ms Margvelashvili 46.     Ms   Margvelashvili testified that on the evening of 7 August 2000 a group of men who introduced themselves as police officers had broken into her house and abducted Mr Dvali and Mr Kakushadze. She was left in her house under the surveillance of two intruders. Some time later, on the following morning, the applicant had telephoned her and threatened her and her son with death if she did not say where his father was. The applicant allowed her to speak on the telephone to Mr Dvali and Mr Grigolashvili, who were being held in the applicant’s office. Mr Dvali and Mr   Grigolashvili told her that the applicant had threatened them with death if his father was not found safe and unharmed. 47.     On 8 August 2000 Ms Margvelashvili contacted Ms   Avaliani, her friend, and informed her of the events of 7   August 2000. She asked her to find Mr   Kervalishvili, who had organised the abduction of the applicant’s father, and to describe the situation to him. 48.     On the evening of 8 August 2000 Mr Grigolashvili was released by the applicant. The applicant then called Ms Margvelashvili and offered an apology for the offensive language he had used the previous night. He also informed her that Mr Dvali and Mr Kakushadze had been released. However, they never returned home. (b)     Depositions by Mr   Grigolashvili 49.     According to Mr Grigolashvili’s statement, on the morning of 8   August 2000 he was abducted by a group of men who claimed to be police officers. He was taken to a building which he later identified as the applicant’s office. There, he was questioned by several people, including, allegedly, the applicant (Mr Grigolashvili was not sure of that person’s identity, since he had never met the applicant and only identified him from a photo). They beat him up and threatened him with death if he did not indicate the whereabouts of the applicant’s father. One of the men forced him to call Ms   Margvelashvili and tell her that she should contact the alleged abductors of the applicant’s father in order to save his life and that of Mr Dvali. On the evening of 8 August 2000, after the applicant’s father had been set free, Mr   Grigolashvili was released. Before he left, one of the men from the applicant’s office gave him documents belonging to Mr Dvali and Mr   Kakushadze. Later Mr Grigolashvili returned the documents to Mr   Tsartsidze, the cousin of Mr Kakushadze. (c)     Depositions by Mr   Kervalishvili 50.     Mr   Kervalishvili confirmed that on 7 August 2000 his employees, one of whom had been disguised in police uniform, had kidnapped the applicant’s father for the purpose of obtaining a ransom. The applicant’s father was kept in a flat which had been rented for that purpose. On the following day Mr Kervalishvili was approached by Ms Avaliani, who informed him about the abduction of Mr Kakushadze, Mr Dvali and Mr   Grigolashvili, and about the threats to Ms Margvelashvili and her son. Mr Kervalishvili then called the applicant and agreed to release his father if the applicant released the three men. During that conversation Mr Berkadze, who had also been involved in abducting the applicant’s father and was at that point in the applicant’s office, confirmed to Mr Kervalishvili that all the hostages taken by the applicant were alive. The applicant also threatened to kill the hostages if his father was not returned safely. (d)     Depositions by Ms   Dzhimshiashvili 51.     Ms Dzhimshiashvili, Mr Grigolashvili’s wife, testified that early on the morning of 8 August 2000 several “policemen” had taken her husband away. In the evening he had returned home; he was seriously injured and she had provided him with elementary medical assistance. He did not tell her what had happened to him; he simply explained that he had been beaten up by the police. (e) Other evidence relied on by the prosecution 52.     The prosecution further referred to a verbatim record of the conversation between Mr Grigolashvili and Mr Tsartsidze on 19   September 2000 (see paragraph 27 above), and a verbatim record of thirteen audiotapes made by the police as part of the surveillance operation (see paragraphs 11 and 24 above). 53.     The prosecution also relied on the reports by Mr   Koval and Mr   Zubov, who had identified the applicant’s voice on the audiotapes (see paragraph 33 above). A considerable amount of circumstantial evidence and hearsay witness testimony was also referred to in the indictment. D.     Trial 54.     As Mr   Sidler, one of the co-accused, was a serving military officer, the case was examined by a military court.     On 28 August 2002 the military court held a preparatory hearing. The applicant was present at the hearing; he was assisted by several lawyers. Those lawyers represented him throughout the subsequent proceedings. 55.     The trial commenced on 5 November 2002. The court was composed of Mr Popovich, the professional judge, and two lay judges. 56.     The applicant and the other co-accused pleaded not guilty. According to the applicant, the abductions in question had been carried out by real policemen, together with Mr Berkadze, who had then decided to shift the blame onto the applicant and his men after Mr Dvali and Mr   Kakushadze had disappeared. 1.     Evidence relied on by the defence 57.     On 25 November 2002 the applicant’s lawyers questioned Mr   Grigolashvili and Ms Margvelashvili in Georgia, in the presence of their lawyers, and through an interpreter. On an unspecified date in 2003 the lawyers also questioned Mr   Kervalishvili. A verbatim recording of those questioning was made. The lawyers further obtained written statements by Mr   Kervalishvili, Ms   Margvelashvili, Ms Dzhimshiashvili and Mr   Grigolashvili concerning the events of 7 and 8 August 2000. Those statements were addressed to the Georgian authorities, to the Military Court of Leningrad Command, and to the applicant’s lawyers. In 2003 the defence lawyers submitted the above written testimonies and statements to the Military Court; they were added to the case file. 58.     All of the above witnesses withdrew their previous testimony to the police, which had incriminated the applicant. In particular, Ms   Margvelashvili explained in her statement of 25 November 2002 that, although she did not speak Russian, she had signed written depositions drafted in Russian by the prosecution authorities. She explained that the “policemen” who had abducted Mr Dvali and Mr Kakushadze from her flat had been led by Mr   Berkadze, one of those who had kidnapped the applicant’s father. Ms   Margvelashvili testified that the man who had called and threatened her in the morning of 8 August 2000 was not the applicant but Mr Berkadze. 59.     In his written submissions of 25 November 2002 Mr Grigolashvili indicated that the person who had questioned and beaten him in the applicant’s office had introduced himself as “a son of the kidnapped businessman”, but that it had not been the applicant, and that he had not seen the applicant at all on that day. 60.     In his written deposition of 22 March 2002 Mr Kervalishvili declared that everything he had said to the prosecution authorities about the applicant was a lie (cf. paragraph 32 above). 61.     The defence lawyers also questioned the applicant’s brother, who lives in Israel and who confirmed the applicant’s account of events. The transcript of that interview was also produced to the court. 62.     The defence commissioned an expert analysis of the recording of the telephone conversations at Ms Margvelashvili’s flat. The phonological analysis of the audiotapes submitted by the defence concluded that the recording of the telephone conversations on 7 and 8 August 2000 did not contain the applicant’s voice. This report was admitted by the court as evidence. 2.     Evidence examined by the trial court (a) Audiotapes and expert evidence (i)     Telephone conversations of 7 and 8 August 2000 63.     The court examined two out of the thirteen audiotapes made by the police in the flats of Ms Margvelashvili and Mr Grigolashvili (audiotapes nos. 13462 and 14123), and examined the verbatim records of the remaining eleven audiotapes made by the police. The defence requested access to all thirteen audiotapes in order to be able to compare them with the verbatim record, but the court rejected that request. 64.     The defence also requested the court to obtain from the prosecution the recordings made between 5.30 p.m. on 7   August 2000 and 1.40 p.m. on 8   August 2000. The defence stressed that during that period the applicant had had a telephone conversation with Ms Margvelashvili. In its submission, the disclosure of the content of that conversation could have proved his innocence. 65.     The defence lawyers asked the court to disclose the materials authorising the telephone tapping of Ms Margvelashvili’s flat and, in particular, the court decision authorising that surveillance. At the hearing of 12 September 2002 Judge Popovich, after having examined briefly a file produced by the State prosecutor, dismissed the request “on the grounds of secrecy”. He explained that he was satisfied with the explanation provided by the prosecution as to the lawfulness of the telephone tapping. It appears that the lay judges did not see the materials submitted by the prosecutor to the presiding judge. 66.     On 4 January 2003 the defence repeated their request for the disclosure of the materials authorising the wiretapping. In particular, they sought the disclosure of the request for the wiretapping by the police and the court’s order of 11 July 2002 authorising the wiretapping (see paragraph 21   above). In an interim decision of the same date the court, composed of Judge Popovich and the two lay judges, dismissed that request on the ground that the materials at issue, relating to the operational and search activities of the police, contained State secrets, and therefore could not be shown to the defence. The court referred to subsection 4 of section 12 of the 1995 Operational and Search Activities Act (see “Relevant domestic law” below), which did not provide for the disclosure of the information on such activities of the police to the lawyers. 67.     The court questioned a number of policemen involved in the wiretapping of telephone conversations at Ms   Margvelashvili’s flat. They submitted that the police had been keeping an eye on Mr Kervalishvili and persons around him, including Ms   Margvelashvili, since March   2000. Ms   Margvelashvili’s flat had been under surveillance since July 2000, and when the applicant’s father was kidnapped the police had known that Ms   Margvelashvili’s friends or relatives might be involved in some way. The witness explained that all telephone conversations within that period had been recorded. However, the recording covering the period between 5.30 p.m. on 7   August 2000 and 1.40   p.m. on 8   August 2000 had been lost “for technical reasons” (see paragraph 24 above). (ii)     Identification of voices 68.       On 25 December 2002 the court started the examination of the expert report of 20   September 2001 by Mr Koval and Mr Zubov. The applicant insisted that the conclusions of the above-mentioned two experts were wrong, and that the man’s voice on the audiotapes did not belong to him. Further, he claimed that the translation from Georgian was inaccurate. 69.     On 29   January 2003 the court questioned the experts who had prepared the report, Mr Koval and Mr Zubov. They testified that at the request of the investigator they had analysed four audiotapes. They had not detected any traces of editing on those audiotapes. In their view, the voice on five recordings belonged to the applicant. 70.     The presiding judge asked Mr Koval whether he had worked with the Georgian language before. Mr Koval replied that, for the purposes of a phonological analysis, knowledge of a particular language was not necessary. He also confirmed that, although the conversation recorded on the audiotapes was in Georgian, he and his colleague only had samples of the voice of the applicant speaking Russian. However, in his opinion that did not make much difference. 71.     On 5 January 2003 the applicant asked the court to order an new expert examination of the voices on the audiotapes. The defence submitted that the voice on the audiotape was not the applicant’s but that of another person, allegedly Mr Berkadze. 72.     In order to rebut the findings of the expert report relied on by the prosecution, the defence lawyer asked the court to call two phonologists, Ms   Rossinskaya and Ms   Galyashina. They were summoned to court and on 29   January 2003 they testified that the methods of phonological analysis employed by Mr Koval and Mr Zubov were questionable and that their conclusions were unreliable. In their submission, Mr   Koval and Mr   Zubov had not used State-approved methods of voice recognition but had relied on their own method, which was unreliable. They produced to the court a report criticising the findings of Mr Koval and Mr Zubov; that report was added by the court to the case file. 73.     On 12 February 2003, in view of the contradictory nature of the conclusions reached by Mr Koval, Mr Zubov and Ms T. S. Kikalishvili, the court ordered an additional analysis of the audiotapes. The defence lawyers asked the court to include Ms   Galyashina in the expert team, but the court rejected that request on the ground that she had already given her opinion on the subject in the capacity of a “specialist” ( специалист ). The court assigned four experts, including Mr   Koval, the same expert who had drafted the first report, proposed by the prosecution, and Mr   Serdyukov, proposed by the defence. Two experts were appointed on the court’s initiative: Mr   Yakushev and Ms   Kikalishvili (the latter had also taken part in the first analysis). 74.     The defence contested the appointment of Mr Koval and Mr   Yakushev. The defence cast doubt on the impartiality of these experts, in that Mr   Koval’s wife had previously worked for the applicant and had been fired by him, and Mr Yakushev was a member of the Russian security service. 75.     On 15 April 2003 the court heard evidence from the experts Mr   Koval, Mr   Serdyukov and Ms   T. S. Kikalishvili. The court also heard two witnesses, namely Mr   Bazunov and Mr Korobetskiy. Mr Bazunov confirmed that he had known Mr   Koval and his wife since 1999. She had worked at the reception desk at a casino owned by the applicant. In September 1999 she had been fired on the direct orders of the applicant. Mr   Bazunov had then called Mr   Koval and explained that her dismissal had not been his decision, but that of the applicant. Mr Korobetskiy confirmed the statement by Mr   Bazunov about Mr Koval’s wife and her dismissal from the casino. 76.     The court refused to discharge Mr Koval and Mr Yakushev. As a result of the new analysis, Mr Koval and Mr Yakushev found that the voice on the audiotape belonged to the applicant. The two other experts came to the opposite conclusion. 77.     On 24 June 2003, at the prosecutor’s request, the court ordered a third expert analysis of the audiotapes, with a view to eliminating discrepancies in the earlier findings. The analysis was entrusted to Mr   Koval, Mr   Yakushev and Mr Serdyukov, who had participated in the previous examination, and two new experts: Mr Kurdiani, a Georgian-speaking expert, proposed by the defence, and an anonymous expert, proposed by the prosecution, whose name was given only as “A.   P.   Ivanova”. The defence asked the court to disclose the identity of “A.   P. Ivanova” or to dismiss her from the expert team, because in such circumstances it was unable to challenge her credentials. 78.     The next hearing was held on 25 June 2003. The court and the parties questioned several witnesses, namely the experts Mr Kurdiani, Mr   Yakushev and “Ms Ivanova”. The latter was questioned through a system of audio teleconferencing. The applicant was present at that hearing and was able to put questions to the witnesses. The defence challenged Mr   Koval, alleging that he was biased, but the court refused to grant their request. 79.     On 27   June 2003 the court decided to discontinue the phonological examination of the audiotapes. The court noted that since Mr Kurdiani was a Georgian national he could not be held legally responsible for false testimony and could not therefore act as an expert in the proceedings. The court also observed that the defence lawyers could not ascertain the personal credentials and professional competence of “A.   P. Ivanova”. 80.     On 2 July 2003 the court declared that the examination of evidence was over and asked the parties how much time they needed to prepare their final submissions. The defence requested one day; the prosecution requested twelve days. The court decided to start hearing the final submissions on the morning of 15 July 2003. 81.     On 15 July 2003 at 10 a.m. the prosecutor submitted an additional phonological analysis of the audiotapes prepared by the same anonymous expert, “A.   P. Ivanova”. Despite the objections raised by the defence, the court admitted the report in evidence and included it in the case file. However, the court refused to reopen the examination of evidence. The report of “A.   P. Ivanova” was added to the case file without examination by the parties. The court rejected a request by the applicant’s lawyers to disclose the contents of the report.   At 11.05 a.m. the court discontinued the examination of evidence and proceeded to hear the parties’ final submissions. (iii)     Audio recording of a conversation between Mr Tsartsidze and Mr   Grigolashvili 82.     The court also heard the audio recording of a conversation between Mr   Grigolashvili and Mr Tsartsidze, made by the latter (see paragraph 27   above). The court had ordered an expert examination of the recording in order to identify the voices on the audiotapes, but it later cancelled the examination. (b) Witness testimonies read out at the trial 83.     Several witnesses for the prosecution, including Ms   Margvelashvili, Mr   Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, did not appear at the hearing. At the beginning of the trial the court asked the parties whether the proceedings should continue in the absence of the above witnesses. The prosecutor supported the idea of continuing the proceedings in the absence of those witnesses. The applicant’s counsel, Mr   Afanasyev, did not oppose the commencement of the proceedings, but asked the court that the witnesses be summoned through the channels of international judicial cooperation. 84.     On 12 November 2002 the Military Court of Leningrad Command sent a letter rogatory to the Georgian authorities asking them to assist in summoning several witnesses, namely Mr Grigolashvili, Ms   Margvelashvili, Ms Dvali, Ms Dzhimshiashvili and Mr Kervalishvili. On 9   March 2003 the Deputy Minister of Justice of Georgia informed the President of the Leningrad Circuit Military Court that Mr Grigolashvili, Ms   Margvelashvili and Ms Dzhimshiashvili were not able to go to Russia to appear before the court. The Deputy Minister also explained that they had all retracted the statements they had previously given to the Russian prosecution authorities. 85.     At the hearing of 19 March 2003 the prosecutor requested leave to read out written depositions by Ms Margvelashvili, Mr Grigolashvili, Mr   Kervalishvili and Ms Dzhimshiashvili, made to the investigator at the pre-trial stage (see paragraphs 46 – 51 above). The defence objected, referring, inter alia , to Article   6   §   3   (d) of the Convention. They submitted that the applicant had been deprived of his right to cross-examine witnesses against him. The defence stressed that they had asked the investigator to carry out face-to-face questioning of these witnesses but that the investigator had refused. In those circumstances, the written depositions by those witnesses should have been declared inadmissible. Despite that objection, on 20 March 2003 the court decided to admit the written depositions and to read them out at the trial. (c)     Witnesses examined at the trial 86.     In the course of the trial the court questioned several other witnesses, in particular Mr Tsartsidze, Ms Avaliani and Mr Kogan. Their testimony can be summarised as follows. (i)     Mr Tsartsidze 87.     According to Mr Tsartsidze, on 8   August 2000 Ms Margvelashvili called him and informed him of the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, which, in her opinion, was related to the kidnapping of the applicant’s father a day earlier. 88.     On 11 August 2000 Mr Tsartsidze met Mr Grigolashvili, who gave him more details of what had happened to him and to others. Mr   Grigolashvili handed over to Mr Tsartsidze documents belonging to Mr   Dvali and Mr   Kakushadze, explaining that he had received them in the applicant’s office on 8 August 2000. These documents were later seized by the police. 89.     On 19 September 2000 Mr Tsartsidze met Mr Grigolashvili again and suggested that he file a complaint with the police about the events of 7   and 8   August 2000. Mr Grigolashvili refused, allegedly for fear of reprisals by the applicant and his family. Knowing that Mr Grigolashvili might refuse to tell the police the true story of his abduction, Mr Tsartsidze recorded their conversation on two audiotapes using a dictaphone. In December 2000 Mr   Tsartsidze gave those tapes to the police (see paragraph 27 above). (ii)     Ms Avaliani 90.     Ms   Avaliani testified that on 8 August 2000 her friend Ms   Margvelashvili had called her, explained the situation and asked her to find Mr Kervalishvili. Ms Avaliani met Mr Kervalishvili and relayed the information. During their conversation Mr Kervalishvili confirmed that he had masterminded the abduction of the applicant’s father. He then called the applicant and they agreed to exchange the applicant’s father for the hostages taken by the applicant, namely Mr Dvali, Mr Kakushadze, Mr Grigolashvili, Ms Margvelashvili and her son. (iii)     Mr Kogan 91.     Mr Kogan, the applicant’s father’s driver, who had been present at the time of the latter’s abduction by Mr Kervalishvili’s and Mr Berkadze’s men testified that the applicant’s father had been kidnapped from his car on the morning of 7   August 2000. In the evening the driver was invited to the applicant’s office, where he was shown “three Georgian men” and asked whether he recognised any of the men who had abducted the applicant’s father. He replied that he did not. (iv)   &#xa0